Washington, DC, partner Peter Cassat discusses how employee hiring assessment tools could cause trouble for employers in an article from ASIS International.

Here are some excerpts from Peter’s interview:

Hiring assessments can be a slippery slope for employers, especially when they rule out protected employees and create disparate impact. Upstate Niagara Cooperative learned this the hard way, agreeing to pay $1.35 million to settle a suit brought by a female job applicant. At issue was a hiring exam that required applicants to lift a 50-pound crate, leading the company to hire 155 men and only five women between 2008 and 2014.

Other assessments, like the popular Minnesota Multiphasic Personality Inventory (MMPI), can also be risky if they’re not designed for the population being assessed (the MMPI is a clinical diagnostic tool but is often used to screen job applicants). What other risks are out there, and how can employers ensure they’re not running afoul of anti-discrimination laws?

“The potential that these tools could have a discriminatory impact on certain protected classes of individuals has been the major concern related to assessment tools,” said Peter Cassat, a labor and employment attorney with Culhane Meadows in Washington, D.C. This has become increasingly true as the use of technology—including the use of artificial intelligence (AI)—has grown. AI is not free from bias and may perpetrate biases that exist in the hiring process.

It’s important for employers to ensure at the outset that any assessment they are using has predictive validity, which means that it is measuring knowledge, skills and abilities that are directly relevant to the job they’re trying to fill.

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Culhane Meadows’ Cassat said employers have to thoroughly understand the tools they use and not rely on vendors’ assurances. The employer, after all, is on the hook if the tool proves to be discriminatory in any way.

“From the employer’s perspective, the fact that [an assessment] is through a technology that is supposed to be neutral is not a defense as to whether a hiring practice has a discriminatory impact,” he said. The likelihood of a tool’s being considered discriminatory is higher if what the tool measures has nothing to do with the performance of the job duties. 

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Cassat suggested also considering any potential discriminatory impact an assessment may have. Candidates with a disability may be particularly at risk, he said, “for example, people who might have English as a second language, or who have some type of hearing or speech impairment.” How might these and other factors impact candidates’ abilities to perform well on the assessments you’re using?

Cassat pointed to employers’ insurance policies as an important area of focus. He said employers should think through the agreements they have with the providers of recruiting tools and platforms, and make sure their policies are up-to-date with their current practices to help minimize risk.

The complete article can be found here.

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